ANNUAL REPORT OF THE VICE-PRESIDENT - TERRY O'GORMAN ANNUAL GENERAL MEETING TUESDAY 15 JUNE 1999
Introduction
The following is my report as Vice-President of the Queensland Council for Civil Liberties ("QCCL") for the last 12 months.
Ian Dearden, as President, and myself have split areas of submission and comment responsibility in order to ensure that the wide range of civil liberties matters which constantly have to be addressed can be adequately attended to.
I acknowledge the continued high level contribution by Ian Dearden as Council President and I thank other Executive members for their ongoing assistance, particularly those who undertake the highly time consuming task of preparing submissions.
Norm Alford & CJC
A complaint was made to the new Office of Parliamentary Commissioner by the Council as to the way in which Norm Alford was treated by the CJC. Particularly, the Council complained about the way that the CJC presented an interim report to the Speaker of the House and the Premier. This was at a time when the CJC acknowledged that they were awaiting replies from Norm Alford to specific issues that had been raised with him.
Norm Alford had been under investigation as a result of allegations that he had maintained an inappropriate relationship with a much younger male and had permitted that person to use his Government-provided car arising from Mr Alford's position as Children's Commissioner.
The CJC has issued an interim report amidst a glare of publicity, something that the QCCL said was a completely unfair approach to Mr Alford's rights. The QCCL argued that, in the light of the completely unnecessary interim "report", the publicity flowing there from had the effect of making it absolutely untenable for Mr Alford to remain in his position and consequently he had no option but to resign and was, in effect, forced to resign by the way in which the CJC chose to release the interim "report" which was really no more than a series of publicly ventilated allegations against Mr Alford at a time when he had not been given adequate opportunity to respond to the allegations.
It is ironic that the QCCL would find itself defending Mr Alford against what we contend are CJC excesses in view of the fact that when Mr Alford held down the position as Children's Commissioner he had very little respect for civil liberties issues in the way that he conducted the public debate in relation to the very real tension between children's rights on the one hand and related civil liberties issues on the other.
We are still awaiting the report of the Parliamentary Criminal Justice Committee in relation to our complaint as our original complaint was made to Julie Dick SC, the new Parliamentary Criminal Justice Commissioner, and she referred it onto the Parliamentary Criminal Justice Committee of the Queensland Parliament.
Child Witnesses
The QCCL made a detailed submission to the Queensland Law Reform Commission dealing with its current Discussion Paper on the issue of the evidence of children. This submission was made on 15 April 1999 and ran to some 31 pages.
Our principal complaint in the submission was that many of the proposals for change were ill thought out by the Commission and were proposed in apparent ignorance as to how child witnesses were in fact treated in the witness box, particularly as complainants in criminal proceedings.
We especially opposed the suggestion proposed by the QLRC that child witnesses possibly should not have to attend at committal proceedings.
We observed that approximately 90% of people charged with child sexual offences plead guilty. However, the committal has a very real filtering role in respect of that small percentage of cases that are contested.
Christine Nunn & Test for Committal
On 8 March 1999 we delivered a submission to The Hon. M. Foley, Queensland AttorneyGeneral. This arose from the discontinuance of criminal proceedings against Christine Nunn after she had undergone committal proceedings but before her trial when the Queensland DPP decided to withdraw the charges on the basis that a jury verdict of guilty was unlikely.
Christine Nunn had been charged with the murder of her husband in circumstances where she had shot and killed her husband while her husband was in the course of attacking her son with a knife.
In the submission we argued that the test for committal for trial in Queensland is far too low. The test effectively is that a person must be committed for trial, even if the evidence is weak and tenuous, if the Magistrate is of the view that a jury just might (not, will) convict.
We drew the Attorney-General's attention to the test that has operated for many years in New South Wales, namely that a Magistrate is permitted to effectively make a forecast as to whether a jury is likely to convict. We drew the Attorney-General's attention to the fact that it is costly for individuals and clogs up the higher courts to send for trial matters which, over the border in Tweed Heads, would not be sent for trial.
We await the Attorney-General's considered response to our submission.
Independent Prisons Inspectorate
A submission was made to the Prisons Minister, the Minister for Families and the Forde Inquiry to the effect that an independent Prisons Inspectorate based on the 20-year-old UK model should be adopted in Queensland.
The model is to the effect that the Inspectorate regularly visits jails (including juvenile jails) and brings to Parliament's attention deficiencies in accommodation and other basic prison conditions.
Our submission has not been accepted but we will continue to push for a proper independent monitoring of conditions in prisons having regard to the skyrocketing prison population in Queensland.
ASIO
A submission was made to the Federal Parliamentary Joint Committee on ASIO in respect of a raft of changes which need to be passed by Parliament by the end of this year in relation to ASIO's operations.
We were particularly critical of the short time frame that was available for submissions to be delivered to the Committee, for the Committee to hold public hearings and the Committee to report. All this was to be done in a period of a little over 2 weeks.
We were concerned at the proposal to give ASIO powers to tap into computers, including altering or deleting data. Allied to that was a concern that this power effectively started ASIO down the road to develop encryption powers concerning computers. We were critical that the very significant debate that has occurred in the United States over the last 2 to 3 years in relation to giving law enforcement agencies encryption-breaking powers has not been held in this country.
National DNA Database
We have continued to express reservations about the extent to which the implications of a national DNA database have been thought through.
While we accept that advances in DNA technology have necessitated some changes in the area of police powers concerning the collection and storage of DNA samples, we consider that the law and order approach to the matter has so far drowned out other relevant considerations in the public debate on this issue.
When the taking of intimate samples from suspects was first raised in 1989, it was then confidently asserted by its proponents that saliva, semen, blood, hair and fingernail samples would only be taken for the most serious of criminal offences. We warned at that time that once the power was given to take such samples under the guise of being only restricted to the most serious category of criminal charges, over time there would be function creep and the police would push for the power to be made available across almost a whole spectrum of criminal offences.
Unfortunately, that prediction has now come to pass and there is currently a proposal being pushed by Australia's law enforcement agencies that the Australian Police Ministers' Council should supervise the drafting of uniform Australia wide legislation which will not only very drastically widen the range of criminal offences for which intimate samples can be taken, but can also extend the taking of samples to someone who has not even been arrested.
The debate in this area travels along similar lines to the debate about close circuit TV in public places. It is to the effect that because occasionally criminal offences such as the murder of the Bolger boy in the UK was partly detected on a close circuit television camera situated in a public place that therefore the spread of cameras to a great number of public places is justified. We have seen a similar argument in relation to Big Brother cameras in public places in Australia.
Similarly, with DNA, because there has been the occasional "solving" of quite ancient crime by DNA techniques, the public debate has been largely unsympathetic to concerns expressed by this Council about the increasing use of DNA technology in criminal cases.
There are propositions now being aggressively pushed by law enforcement agencies that taking a saliva swab from a person's mouth should be allowed to be done by a police officer and that no court order to that effect should be required.
There is now quite open discussion by police services to the effect that car stealing and break and enter charges could supposedly be more easily solved if a greater number of Australia's almost 20 million population had body samples taken from them and stored in a way similar to which fingerprints have been centrally stored over the years.
As a society, we are becoming so fascinated by the Saturday matinee aspects of DNA technology and police investigations that we are failing to properly consider the undesirable civil liberties consequences of having the State keep ever increasing numbers of intimate samples in perpetual storage on the off chance that a particular sample may become relevant in the future.
There is even a suggestion among some law enforcement agencies that significantly increasing the numbers of people who can be forcibly compelled to contribute to the DNA database might even clear up (after the event, not prevent) car stealing. This is supposedly on the basis that when a car is stolen the thief is likely to leave particles of hair or fine particles of skin behind and that that will tie the thief to the crime, something like a fingerprint on a car window currently does.
Therefore, quite invasive procedures are being proposed even to deal with crimes such as car stealing in circumstances where Governments are not prepared to subsidise the now available vehicle immobilisers which will significantly reduce the number of cars stolen as opposed to possibly increasing in a small way the percentage of people who are arrested for stealing cars, once the cars have already been unlawfully used.
Megan’s Law
We are increasingly seeing calls for the establishment of Megan's Law compelling convicted paedophiles to advise police of their address once they are released from jail. While such a proposal has been constantly in the news as part of the Queensland Opposition's clear strategy to make law and order a constant weekly issue rather than restricting it to being an election issue, neither the Government nor the Opposition is putting forward any proposals to protect not only the offenders who have completed their jail time from ongoing victimisation but particularly to ensure the safety of that person's family members.
We are writing to the State Attorney-General requesting that a suitably drawn offence of harassment be created in respect of those extreme groups in the community who promise to do letterbox drops to advertise the current address of a person who has been convicted of a child sexual offence, no matter how minor that offence may have been and without regard to the extent of that person's rehabilitation.
Are we to reach a similar position to some jurisdictions in the United States where address and other details of persons convicted of paedophile offences (even where a person is not deemed a risk of re-offending) are posted on the Internet?
Costs for Committals & Jury Trials
This Council has been calling, for well over a decade, for costs to be granted to an accused person if their case is thrown out at committal or trial in circumstances where there was little or no merit to the prosecution being brought.
I have mentioned above the position of Christine Nunn who was forced to defend herself at what was obviously a difficult, complex and costly committal in circumstances where she shot her husband because he was attacking her son with a knife only to find that the charge was dropped within a short time of the Magistrate committing the matter for trial.
There was also the more recent case of the Queensland fire officer who was freed halfway through his Judge and jury trial after the prosecution accepted the fire officer's longstanding contention that the death of a young boy was caused by the brakes on the fire truck failing.
Well over a decade ago the law was changed to make police liable for costs in cases fully run and decided before a Magistrate where an accused person was successful and it could be established that the police brought an unmeritorious prosecution. That law has served as a brake against unmeritorious summary trials because the police service has made it clear that they want the number of costs orders kept to a minimum.
This restraint on weak and unjustified cases being continued, at the significant cost to the citizen, does not extend to unwarranted committal proceedings or the running of weak cases in front of a jury.
In the area of privacy, we have seen Queensland politicians only become interested in doing something about this State's woefully inadequate privacy laws when politician’s addresses are posted on the Internet. Perhaps Queensland will be brought into line with States such as New South Wales, Western Australia and Tasmania where costs will be available to citizens unjustifiably prosecuted at committal or before a Judge and jury where that citizen happens to be a politician or a member of a politician's family.
Miscarriage of Justice Unit
We have written to successive State Attorneys-General in relation to establishing proper and workable machinery for remedying miscarriages of justice.
The 1987 Fitzgerald Royal Commission recommended the establishment of such a unit, a recommendation which the incoming Labor Government ignored.
The current system of having a miscarriage of justice properly investigated and then having to get the political Office of the Attorney-General to refer the matter back to the Court of Appeal is totally unacceptable at the end of the 20th Century.
Office of the Attorney-General
While Matt Foley has struggled hard to retain some of the "first law officer" characteristics of the Office of the Attorney-General, the current Opposition Shadow Justice Spokesman (Lawrence Springborg) seems hell bent on politicising the Office of Attorney-General and stripping it of what little vestiges remain of the independent law officer aspects of that Office.
The quite negative antics of Mr Springborg and the Conservative Opposition in Queensland in constantly trying to portray the current Attorney-General as somehow or other weak because he has not lodged a notice of appeal in a controversial sentence raises much concern for the Office of the Attorney-General in this State.
We saw the quite unedifying spectacle earlier this year in relation to the toddler-in-the-box torture case where a mere 2 weeks of the 28 day appeal period had not even passed when the Opposition were baying for the Attorney-General to lodge an appeal. It was of little relevance to the Opposition justice spokesman that the transcript of the sentence, which had been held in a northern centre, was not available and that there was still a further 2 week period for the decision to be made as to whether an appeal by the Attorney-General would be instituted.
An obvious pattern has emerged whereby the Opposition justice spokesman is now using individual cases as part of a constant law and order programme and is setting out to paint the current Attorney-General as somehow or other "weak" if he has not lodged an appeal within 7 days of a sentence despite the fact that a 28 day period exists for the lodgement of a sentence appeal.
It is unfortunately the case that the Opposition are seeking to cheaply politicise the Office of the Attorney-General and to treat it in the same political football fashion as has characterised the Office of the Minister for Corrective Services over the last decade or more.
It is commonplace that if a prisoner walks out even of a low security prison camp, the Opposition howls that the State's prison system has become a revolving door. We are now seeing the same "the Minister is weak" finger pointing at the Attorney-General when a sentence controversy which the Opposition have themselves whipped up into a media frenzy is not immediately and promptly responded to by the Attorney-General lodging a sentence appeal.
The Office of the independent Director of Public Prosecutions was introduced around the country in the mid 1980's to take political considerations out of the decision as to the laying of criminal charges. The concept has worked generally well for the last 15 years.
A stage has now been reached in Queensland where the Council has urged a number of times over the last 12 months that the power to institute sentence appeals should be taken away from the point scoring politicians and given to the independent DPP in the same way that the power to charge was taken away from politicians in the mid 1980's.
We urge this change as quickly as possible in Queensland.
TERRY O'GORMAN, VICE-PRESIDENT
Brisbane, 15 June 1999